Is the broadcast flag rearing its ugly head yet again over a show about a …

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Well, FX may broadcast a show about wild, anarchistic motorcycle guys and gals, but that's where the freewheeling spirit stops. An Ars reader tells us that he was unable to record the program for personal use, perhaps due to the infamous "broadcast flag"—those malicious bits injected into a datastream that allow distributors to shut down your ability to record content. Our informant's Sony DVD-R ran into the problem on the FX Network via DirecTV, he says, both in standard and HD channels.

"As soon as I hit record—a big blue box popped up and stated, 'Unable to record—copyright broadcast'," he wrote to us. "This was all the way through the 9pm showing and the 10pm showing CST. I repeatedly kept trying, I emailed [DirecTV's] support and they stated [networks] can do as they please."

Concerned about this report, we dived right into the bureaucratic nightmare that is trying to contact any company about a DRM problem. First we called FX's PR department about this latest flag sighting, whose spokesperson said he did not know what a broadcast flag was and suggested that anything like this had to come from DirecTV. A customer service rep at the satellite TV provider told us that DirecTV "doesn't have any control over it," laying the blame at the foot of the network. We contacted DirecTV's press folks about the question, and they told us they would get right on it. That's the last we heard from them.

Finally, we tried to get guidance from Sony, whose tech support people referred us to the very web page from which we had contacted them in the first place. Clearly we were on our own, we realized, and began doing our own research on this question.

Solution not cheap

First of all, this was not a DVR glitch, but a DVD-R issue, which is probably why we haven't been getting a lot of distress signals about this incident. Our readers' device seems to have been an older model about which there isn't much recent intel. But we did locate this cry of pain, coming from the owner of a similar SONY product. "EVERYTHING I TRY TO RECORD I GET THE MESSAGE: COPY PROTECTED CANNOT RECORD," the consumer lamented to the Just Answer web service. "It sounds like the TV station is sending out the copyright signal," comes the reply. "It's called a broadcast flag."

Indeed, but why does the flag seem to mug these devices in particular? Despite the fact that some hardware will respect the flag, it is almost never used to prohibit recordings on standard cable networks. Ars staffers with DirecTV DVRs have extensively used their devices for more than two years without ever finding a restricted show, for instance. But as the Videohelp Forum notes, some cable programs stream with an embedded "Copy Once" flag. They can be recorded on a variety of devices, including hard drives, DVRs, and DVD-RAM drives, but not on standalone DVD-R recorders.

"There are ways to circumvent" this problem, the forum notes. "Although not cheap."

Preemptive action necessary

This case, albeit somewhat anomalous, appears to spotlight yet again the down side of DRM (frankly, we have yet to discover the up side). The broadcast flag does little more than to break or disable otherwise userful products, and deny consumers the services for which they paid. And for what—to prevent a customer from recording a personal copy of a show to his DVD-R, only to then rip it and upload it on P2P networks? What's the point? There's a 720p rip of the show in question available on at least one popular BitTorrent tracker already.

Let's recap the sorry history of this unfortunate practice. In late 2003, the Federal Communications Commission (FCC) toadied up to the content industry by approving the practice of using broadcast flags to limit recording and copying. The Commission concluded (PDF) that the "potential threat of mass indiscriminate redistribution" would "deter content owners from making high value digital content available through broadcasting outlets absent some content protection mechanism."

"Preemptive action" was necessary, the FCC declared, "to forestall any potential harm to the viability of over-the-air television." The broadcast flag was a go, and devices makers would need to respect it.

But in 2005 the US Court of Appeals for the District of Columbia gave the decision the head noogie it deserved, ruling that the agency didn't have the jurisdiction to make this sort of call. The gist of the decision was that the FCC had no business telling consumer electronics manufacturers how to design their products without a specific mandate from Congress.

After that, Hollywood lurked around Capitol Hill, looking for someone to give the studios coverage on this issue. When an angry senator finally proposed a bill that went in the opposite direction, Big Content gave up on the crusade. But the practice is still supported voluntarily by some device makers. (Many Ars readers doubtless remember that snafu when Windows Media Player honored the copy protection mistakenly placed on one NBC show.)

What gets us is the possibility that this nasty business is popping up on the Sons of Anarchy of all shows—"an adrenalized drama," in FX's own words, about an arms running motorcycle gang who want to keep their small California town ("Charming, CA" ) safe from drug dealers, overzealous cops, and "corporate developers." Hopefully said developers can be kept from the shows' output stream as well.

Our reader told us that he's complained to the FCC about this incident. He says the Commission suggested he contact the Copyright Office.

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Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar